Tuesday, March 8, 2016

Internal Security Parameters

This chapter was written for “Center
for International Strategic Studies” (CISS) for their book Pakistan’s Security
Problems & Challenges in the Next Decade. This paper has attempted to look
into the internal security in a broader perspective and has highlighted the key
areas with possible way forward.

By Afzal A Shigri

Internal
Security Parameters

Background

The
concept of a state emerged from collective living in an organized social
structure aimed at ensuring security of life and property. A state that cannot
provide security has no justification to exist. The right to live peacefully,
to be dealt with according to law and to live one’s life without any fear
constitutes a triad of fundamental rights upon which there is universal
consensus. The constitution of Pakistan devotes a complete chapter 1 of part II
to defining these rights, a close reading of which establishes that that all
these rights flow from the right of a secure and peaceful existence. This is
true of every country, and Pakistan is no exception. Indeed, it holds truer for
Pakistan because the history of its creation, which was tragically violent, has
been compounded by the menacing presence of a neighbor whose prime mantra has
been a denial of the former’s existence as a viable state. Three successive
wars with the behemoth eastern neighbor resulted in the forcible separation of
Pakistan’s eastern wing. Although it has become fashionable to talk with
disdain about a security state, given the circumstances of the country’s
genesis, did Pakistan really have a choice to ignore the fundamental need of
security and peace? The response to this pivotal question can only be a
resounding ‘No.’ Indeed; the importance of internal security must be recognized
and addressed in right earnest. Pakistan also has an international obligation
as signatory to UN Universal Declaration of Human Rights and International
Covenant on Civil and Political Rights to give security to all living within
its territory. This chapter will briefly define the internal security
parameters and identify and analyze the areas that need to be addressed as well
as the challenges that they pose while exploring possible solutions.

Existing environments state of
affairs

To understand the internal security
parameters, it is important that the geopolitical factor and its impact are
examined because this is the single factor shaping the way Pakistan works. It
suits some of the major international players of the 'Great Game' that Pakistan
remains convulsed by the continual struggle for survival. Historically, the
eastern border, which is also an ideological boundary, has been a perennial
threat. The administrative border on the west was never thought to pose any
threat. Afghan resistance to USSR occupation and our leading role in this
resistance provided grounds to our enemies for sowing the seeds of discontent
and encouraging the hostile elements. Pakistan’s policy of support to the
Kashmiri resistance in India had repercussions in Afghanistan where with the
connivance of the international players India has been playing an active role.
In fact, there is concrete evidence of India’s engagement with the hostile elements
in the country who[1]
have been provided resources and training by the former through the western
border. This factor has contributed significantly to a sharp increase in
violence and atrocities evidenced in sectarian and ethnic militancy in
Pakistan. This was further facilitated by vaguely-defined and porous western
border, particularly in the bordering provinces. Due to Afghan resistance in
the 1980s, influx of the refugees practically made this border irrelevant, and
the hostile elements were able to make inroads into other parts of the country
particularly in the urban centers.

Pakistan’s enthusiasm for Jihad and the
training imparted to the Afghan Mujahedeen were vital in compelling the
withdrawal of USSR from Afghanistan, but these fighters were abandoned by the
world after the departure of the Russians. Most of these battle-hardened
fighters had nowhere to go. No one, including Pakistan, thought about their
rehabilitation. This oversight was exacerbated by a distinct lack of concern
about their integration in the normal social life on both sides of the border.
Over time, they evolved into mercenaries. Soon, receiving support from their
affiliates in Pakistan and abroad, the former Mujahedeen regrouped and morphed
into human hubs for international militancy. They not only posed a threat to
the world at large but also became major actors in local sectarian conflicts
which soon found sustenance through a transformation into organized crime
syndicates.

Organized
crime proved to be a very lucrative occupation, and the existing culture of
protection money (batha) and violent crimes of kidnapping for ransom as well as
robberies developed into a huge source of wealth. Big cities presented ideal
ground where this crime culture already existed in one or the other form. Apart
from other urban centers of Khyber Pukhtunkhawa, Baluchistan and Punjab, and particularly Karachi in Sindh presented an ideal setting for such activities.
Karachi since 1986 had seen a growing confluence of politics and organized
crime that funded and sustained cycles of ethnic clashes as well as sectarian
strife. Any individual with hired guns could, with sufficient muscle power,
develop a structure of illegal funding for various parties thereby giving rise
to turf wars that widely criminalized society at large the fallout of which
permeated into Pakistan as people from every region were strongly linked to
Karachi. In this fertile ground, the fighters of the Afghan war walked in, and
with the ascendancy of the Pakistani Taliban they found ready bases amongst the
local Pukhtun population. Their numbers swelled with new local converts of
unemployed youth, and crime in the name of religion soon became an 'honorable'
occupation for them. Looting the 'sinful city of Karachi' as well as other
urban centers was kosher for them, and their narrow interpretation of religion
gave them the needed religious fiat to pillage and plunder at will with
extremely tragic outcomes for Karachi and Pakistan. Slowly but surely similar
changes are taking place in other big urban centers exposing them to a rising
crime and a nexus between the organized crime and militants.

This phenomenon was the direct outcome of
the geopolitical reasons but Pakistan was already going through a change in the
crime pattern mainly due to population growth, urbanization of the population
and bad governance. Deprived youth in the commercial hub of Karachi and other
urban areas of Sindh had already joined militant ethnic parties and were
involved in acts of violence as well as collection of protection money (batha) and crime to collect funding for
their patrons. The fallout of the Afghan war and geopolitical factors took this
violence to a higher level with a new form of militancy that is now threatening
the very existence of the country. In Baluchistan, the local nationalists with
the support of certain foreign powers are on the war path. In Punjab, sectarian
conflict spearheaded by the affiliates of the Taliban has given rise to
violence against all the sects who do not adhere to or believe in the narrow interpretation
of Islam propagated by this violent minority. In the absence of effective law
enforcement or by other relatively peaceful groups, emboldened them resulting
in more violence.The repeated and
regular cycle of violence has helped organized crime to grow and develop into a
sophisticated structure of syndicated crime with a ready supply of recruits and
resources. Their collusion with the militant groups has created a lethal mix,
which has sinister implications for Pakistan’s struggle to achieve peace and
security. The country is afire, and the deteriorating situation is a matter of
grave concern particularly due to its nuclear assets. These assets were put in
place to protect us, but we are now worried about the very security of these
erstwhile sources of defense.

Mr.
Abdullah, former Chief Secretary of KPK, well known for his administrative
capabilities and recognized by the international communities for setting up and
managing one of the most successful refugees’ camps as Afghan Refugees Chief Commissioner
has summed up the challenge in the following words:

We
are up against extensive insurgency which cannot be treated as a conventional
law and order situation .Now we have to defend the borders inside the country
which is more difficult than fighting on the borders. Our L.E.As are pitched
against a well-organized (despite its internal ruptures), fully weaponized,
committed, indoctrinated (with visible support in certain quarters) movement
both esoteric and ideological. The ideological baggage that this movement
carries with it has its appeal in certain quarters of the country. It has to be
fought on all fronts. The complexities of today’s IS cannot be left to the
police alone. All the systems have to be revamped otherwise the jigsaw puzzle
cannot be resolved.[2]

Territorial structure
and internal security

One of the fundamental
challenges encountered by the law enforcement agencies (LEAs) is the variety of
administrative arrangements in Pakistan that even limits the jurisdiction of
police to operate in certain areas.According toArticle 1 (2) of the constitution, the Territories of Pakistan
shall comprise the four provinces, Islamabad Capital Territory, federally
administered tribal areas and such states and territories as are or may be included
in Pakistan whether by accession or otherwise.

On ground the territories of Pakistan
are administered differently with various sets of laws and regulations and are
as under:

(a)Majority
of the areas are subject to regular justice system with formal police and
courts. These are territories comprising, the settled four provinces with their
own provincial governments and assemblies.

(b)Federally
Administered Tribal Areas (FATA) administered by the Government of Pakistan
based on the agreement with tribes at the time of independence with
representation in the parliament but without any provincial governments and
assemblies. Legislation for these areas is being done by executive orders of
the President.

(c)Provincial
Administered Tribal Areas (PATA): These are essentially semi-autonomous states
that were included in Pakistan Territory and were included in the provinces and
few others of tribal areas in Khyber Pukhtunkhawa.These include the states of Swat, Dir and Chitral.

(d)Baluchistan
is divided in two categories namely 'A' areas mostly comprising cities covering
about 5% of the total area and 'B' area covering the remaining 95% of the
province. 'A' area has a regular administrative set up and regular courts. In
'B' areas there is no police but the law enforcement is entrusted to levies and
Frontier Corps. The population however has a representation in the assemblies and a rather undefined loose
administrative arrangement under civil bureaucracy.[3]

In the tribal areas the law enforcement
agencies with a very specific role are summarized below:

(a)Frontier Corps:
This force is basically for maintaining peace and order in most of these areas
as well as protecting international interests. Earlier, according to the law
they only acted under the instructions of the local political civil bureaucracy
in FATA and 'B' areas in Baluchistan, but as the governance system has
collapsed due to extra-ordinary circumstances the Frontier Corps increasingly
operate independently. Because of its military structure and better firepower
it is also deployed within 'A' area of Baluchistan province.

(b)Levies
have loosely organized policing structure but without a senior command. They
work directly under the Deputy Commissioner and Political Agents for day-to-day
policing. It is poorly trained and lack professionalism.They are also linked to the local tribes as
their recruitment is based on the quota allocation for various tribes and in
some cases even on inheritance. Their loyalty to their tribe and the tribal
sardars constrains their ability to operate effectively. Misuse of this force
in 'B' areas is rampant. A large number of them work as personal guards of
influential sardars.

(c)Khasa Dar:
This force exists only in FATA. Members of this force are locally nominated by
the tribes and have no prior training they directly serve the political
authorities. Again, they are non-professional militia.

In these areas, the normal jurisdiction of the High
Court does not exist, and the trial is by the local Jirga. They are governed by
special laws like FCR and a mix of Rawaj (tradition)
and Sharia (Islamic laws).

A unique history of a justice system that includes
civil as well as criminal matters is that of Malakand. After the merger of
these areas as regular districts, surprisingly, no action was taken to extend
the normal legal system through proper and well considered legislation[4].
The police and the courts structures were introduced through executive orders.
The slow and grinding criminal system was extremely frustrating for the local
population who were accustomed to simple and speedy justice. The system worked
through this ad hoc arrangement resulting in discontent and unrest amongst the
public giving rise to the Sharia Movement[5] by
Sufi Muhammad that ultimately transformed into violent militancy perpetuated by
his son-in-law Mulla Fazalullah. The Nizam-e-Adal regulation[6]
later on introduced has yet to take roots. This rather thoughtless process had a
catastrophic effect on a very peaceful area, which has been now exposed to
serious threats by the extremist elements in the name of religion.

In Baluchistan, during the rule of Pervaiz Musharraf
and as part of the governance reforms, the regular police jurisdiction was
extended to the 'B' areas.[7]
This would not have only mainstreamed this area but also provided job
opportunities to the locals, but unfortunately this decision was reversed by
the political government after 2008 elections for appeasing the influential
tribal sardars.

Such a variety of administrative set ups, their
disconnect with a standard criminal justice system in any country would pose
serious difficulties in law enforcement even under normal circumstances. The
situation becomes extremely challenging when the government is confronted with
insurgency forcing it to defend its borders inside the country including within
its major cities.

Justice (R) Manzoor Gilani summed up the problem and solution in
the following words.

Unsettled
and uncertain politico-administrative situation in FATA and PATA and on account
of jehadi culture evolved during Afghan war multiple problems have accrued in
settled areas of Pakistan such as illegal immigrants, Kalashnikov and drug
culture, thefts, robberies, smuggling, abduction for ransom etc. Way out is
mainstreaming of these areas in the constitutional set up of the country with
provincial set up to FATA and amalgamation of PATA in Khyber Pukhtun Khawa[8].

The
tribal area and (B) area are under the virtual control of the local tribes or
Sardar, a safe haven for criminals and a secure space where stolen properties
such as vehicles can be kept and utilized freely. The tribal areas are also
convenient places for
weapon storage and illegal, smuggled goods as well asnarcotics. These practically become a
staging ground for the organized gangs of criminals and the terrorists.

The purpose of above analysis is to highlight the
inherent flaws in the prevailing governance structure of the state and the
problems that continue to impede the efforts to maintain peace in the country.
Sadly, successive governments have not addressed these basic issues for
mainstreaming the tribal and the special areas by reforming the system in line
with the constitutional provisions and treating the people of these areas on
par with the rest of the country. Granted that in order to meet the local needs,
the legislation has to be tailored for [9]different
administrative units keeping in view their special environment,[10]
but such an excuse is not sufficient to continue to deny these areas the right
of integration into the system with the rest of the country.

The newly appointed chief of ISI has highlighted the
difficulties in operation in FATA and need of the cooperation of the local
population in these words. “The Federally Administered Tribal Areas are a vast,
remote, and rurally populated region. Finding and eradicating small pockets of
radicals without the cooperation of the tribals is like finding the proverbial
needle in the haystack without help from the straw….”[11]
It is absolutely important that vested interests should not be allowed to
hinder the process of mainstreaming the people of these areas and keeping them
subjected to medieval laws impinging on their fundamental rights.

CRIMINAL
JUSTICE SYSTEM:

Only
an effective and just Criminal justice system can guarantee lasting peace and
order. If all parts of this system are weak and disorganized, it is bound to
give rise to the weakening of the state thereby exposing it to grave dangers. A
look at the system, therefore, is key to understanding the collapse of internal
security in the country.

The
criminal justice system comprises police, prosecution, courts and
probation/rehabilitation departments. While mentioning the system, the National
Internal Security Policy document has recognized officially that all segments
of the system need to be improved to get any positive results in implementation
of the internal security policy.

Police:

National
Reconstruction Bureau report of 2001 on Police Reforms[12]
fittingly summarized the history and the fundamental flaws of Police in
Pakistan as follows.

In Pakistan we inherited a police system that
was not only fundamentally flawed but also perceived to be working against the
interests of the people. One could argue this point forever but there is a
common ground “that contemporary policing was faced with a deepening crisis both internally within its
own - anachronistic - organization and externally in its relationship to the
public.

As enormous social and economic changes
have taken place in the country since 14th August 1947, the concept of maintenance
of law and order has also undergone substantial changes. Whereas availability
of the fundamental rights to the people, spread of education, and growing
economic activity have created pressures to change the nature and quality of
policing, there has been unwarranted political interference by irresponsible
politicians that has made policing more difficult. Unfortunately the emergence
of these and other factors directly impacting police role and performance have
not been accompanied by corresponding changes in the archaic structure of the
police that presently lacks both capability and capacity for shouldering
massive challenges emanating from political pressures or from the emergingcompulsions of law and order.The police system in Pakistan has been “a
prisoner of history without any breakaway from its colonial past”. The outmoded
and outdated system of policing conceived by the colonial masters for a
different objective more than 139 years ago, has continued unchanged due to the
unbroken nexus of the bureaucracy and the politicians; the organization
“presents a bewildering picture that is too static and devoid of the dynamism
of change.[13]

The
police system in Pakistan is a remnant of the British Era. The law under which
police was created in United India was enacted in 1861 in the wake of the 1857
War of Independence. Against this backdrop, the British designed the police
force on the pattern of Irish Police Constabulary, essentially a militarized
version to maintain order. The purpose was to maintain order at all cost. If it
provided any service in crime control, it was incidental. Various governments
realized the need for reforming police and bringing it in line with the modern
police structures. To achieve this 29 commissions, committees were appointed by
various governments and experts examined all the issues in detail and came up
with concrete recommendations that were never implemented on one or the other
pretext.

Reforms meant extra resources, and the
major, common factor for non-implementation of these reforms was the erroneous
perception that expenditure on police was a non- development expenditure, and,
therefore, the resources could not be allocated for this purpose. It was for
the first time that Dr. Mehboob ul Haq put the expenditure for the up-gradation
of law enforcement agencies under the development budget. Mostly, the dragging
of feet on the reform issue stemmed from narrow political considerations
paralleled by a reluctance to bring about any meaningful reforms that would
dilute political interference in the police functions.

It
was only in 2002 that, ironically, a military ruler[14]
gave a modern and people-friendly law to Pakistan. This law was crafted on the
following principles.

·Transformation of police role from
enforcement to service

·Insulation of police from political
interference

·Operational and administrative autonomy
with full responsibility

·External oversight by the civil society

·Strict, swift and credible
accountability of police

The most important and balancing element
was the call for expunging political interference in the administrative and
operational matters of the police. Saving the institutions from the ones who
control them is a challenge that has been addressed in different ways by many
countries.

Because of this single factor, the
law took a long time to implement. In fact, recently in two provinces, the law
has been scrapped and replaced yet again with the archaic law of 1861. In the
other two provinces, the provisions of police law have not been implemented
and, in a very devious manner, through parallel legislations in other laws,
many provisions been made redundant.[15]
On the other hand, there has been no increase in the number of police personnel
proportionate to the population growth. Karachi is the worst example of neglect
in this regard. For a population of 27,993,000[16]the sanctioned strength of police is just 35,000[17]
with a recent promise of 5000 additional men. These manpower resources have
been further eroded by the reassignment of police the role of providing
security to persons with sometimes real and mostly perceived threats.
Presently, more than five thousand personnel are deputed for such duties.
Interference in the duties of the police and selection of its heads on the
basis of how weak and compliant the officer is has practically paralyzed the
police forces in Pakistan. Their misuse in political matters has further
compromised their credibility limiting their capability to deal with complex
and difficult crimes of land grabbing and organized crime. Alarmingly, this
interference even extends to acts of terrorism involving sectarian outfits.
This has led to growing reliance on para-military forces and the army. This
trend has its own unfortunate implications with tragic outcomes for the
implementation of democratic practices. This specific issue has been addressed
in detail separately.

With
reference to interference by politicians, Mr. Iftikhar Rashid, former Inspector
General of Police, an outstanding officer commented:

Political influence and
bridari structure has a very negative impact on the entire government machinery
including police. This pernicious interference particularly is alarming as it
destroys the entire justice system. It was the weakness of the institutions
that allowed this influence to flourish resultantly with erosion of their
effectiveness and authority. Bureaucracy is however equally responsible for
this state of affairs as they willingly collaborated for personal gains.[18]

Prosecution

Another weak link is the absence of a
well-organized and quality prosecution service in the criminal justice system
for bringing the criminals to justice. During the consideration of police
reforms, this issue was flagged with the NRB proposing a separate, independent
prosecution department. Proper prosecution is key to the effective functioning
of criminal justice system. Prosecution departments were created, but,
unfortunately, this too was considered to be an opportunity of political
patronage. Recruitment on political consideration without any transparent
method of hiring and resource constraints from its very inception made the
department yet another form of squandered resource that has failed to deal with
the challenges of prosecuting hardened criminals and terrorists. Despite 48
functional, anti-terrorist courts and new prosecution department from 2008 to
2012, 14115 terrorists were acquitted, and 10387 were released on bail, 6661
cases were decided against and 13053 cases[19]
were instituted. The accused include a large number of dangerous terrorists who
were acquitted or released on bail and are back to their trade of committing
crime and terrorism.

Courts:

"Suspects
in Pakistan who survive investigation by police find themselves before the
courts- and may the Lord have mercy on their souls."[20]

The higher judiciary enjoys a certain level
of credibility, but as an institution it has totally failed to come up to the
expectations of a common man. Like the rest of the society, corruption has also
seeped into the lower and middle level structure. This has been further
compounded due to resource constraints in the shape of infrastructure and
massive increases in their duties. After the abolition of the post of District
Magistrate and the Executive Magistrate, the courts hear all civilian and
criminal cases. In addition to a large number of cases instituted every year,
there is also the additional burden of bail applicants, preventive action, and
miscellaneous applications taking up the time of the courts. Without proper
court rooms, basic infrastructure and staff, the presiding officers of these
courts are unable to cope with the volume of the work. This results in repeated
adjournments of the cases.A delayed
trial of the cases generates frustration and discontent amongst the litigants
and also opens the door for corruption. In criminal cases, the criminals are
released on bail who then go back in the society knowing the weakness of the
system and resort to committing crimes with impunity. Experience has shown that
the criminals on bail commit crimes to raise resources in order to fight
against their conviction in a dysfunctional system.

A typical example of the complete apathy and
neglect in this regard is the absence of infrastructure for the district administration,
police and the courts in the capital city of the country. The Capital was
shifted to Islamabad in early sixties, and to date the courts, the
administration and police have been performing their duties from the shops
located in commercial plazas. Recent attack on the courts in Islamabad by the
terrorists highlights the difficulty in providing security to the courts which
were located in the middle of a commercial center. But inexplicably even after
this brazen act of violence, no urgency in addressing this problem is
discernible. In view of the prevailing security challenges, one would have
expected some swift action, but the skewed priority for a metro bus seemed to
have taken precedence. The courts and the administration continue to work under
insecure conditions.

According
to the Justice and Law Commission Annual Report (2013),[21]
there were 1172 judges including the district judges in Punjab Province required
to deal with all civil and criminal cases numbering 1,929,236. On the average
every court is expected to deal with 1646 cases in a year. It is humanly
impossible for the courts to deal with such large number of cases, but everyone
including the judiciary is oblivious to the state of affairs. Sou moto action
by the superior judiciary has been reduced to an action for possessing two
bottles of liquor, or sugar prices but apparently this important issue of prime
public interest does not merit attention of the courts. There is an urgent need
to increase the number of courts and also to provide requisite security,
infrastructure and administrative support to courts to speed up the process of
trial of the criminal cases.

The overworked judges are expected
to try the cases of terrorism and organized crime and hand down maximum
punishments without logistical support and security. It is not only impractical
but also bears testimony to the incompetence and distorted priorities of the
policymakers. Some brave souls, despite these risks and constraints, have
punished the terrorists and given the ultimate sacrifice of martyrdom. It is,
therefore, not surprising that the cases of high profile nature remain under
trial without any decision or end in acquittals.The Musharraf government had secured funding of three hundred
million dollars from the Asian Development Bank for Access to Justice Program
reforms[22]
that was placed at the disposal of the then Chief Justice of the Supreme Court
of Pakistan. Except substantial funding for the higher judiciary, the funding
has made no difference to the capacity of the lower court. The existing
structure is incapable even of dealing with routine cases under normal
circumstances. Expectation of any results in dealing with the present
challenging situation is not realistic. Despite its much-trumpeted
independence, the judiciary has made no difference in the performance of the
lower judiciary, and due to raised public expectations, the higher courts are
clogged with petitions, which keep them engaged in the hearing of these urgent
applications at the expense of pending appeals.

Probation/Rehabilitation Department:

Every province has Probation/Rehabilitation
Department that is expected to help in the rehabilitation of the convicted
prisoners. This department exists only in name, and except for releasing people
on probation, no other useful work is done by this department is in evidence.
In all the modern and developed countries, this department has a key role in
rehabilitation and re-integration of the criminal in the society and conversion
into a useful member of the society. As an important arm of the criminal
justice system, the department requires urgent attention and it can be used as
a useful unit for de-radicalization of the prospective terrorist.

The fractured criminal justice
system is expected to fight one of the most complex and difficult mixes of
insurgency, internal conflict and terrorism found anywhere in the world. It is
a matter of grave concern, which we expect to be addressed by a tattered and
non-functioning system. Despite these impediments, if the personnel working in
these institutions, no matter how flawed are provided support and
encouragement, they can still rise to the challenge. Only a courageous and
committed leader is needed to lead them.

Militarization of Law Enforcement
Agencies

Every government wants swift results
and a quick fix. The stock answer to all emergencies is to look up to the only
strong institution, the Pakistan Army. In maintaining peace, the governments
have also opted to frequently call in the army.Initially it was for a short period of time to deal with law and order
situation, but as a civilian law and enforcement structure has weakened and
degraded due to paucity of resources and political interference, the period of
deployment has been extended. Occasional deployment gradually became a regular
feature. Government gradually tended to rely on the armed forces for police
work. This also absolved them of the political fall out of any coercive action
during enforcement requiring use of force. This provided temporary relief, but in
the long run this frequent involvement of the army led to a negative impact on
the democratic norms of governance and exposed the weakness of the political
system. It also gradually set in motion a process of militarization of civilian
law enforcement machinery. Various aspects of this process are discussed in the
following section.

In 1947, two forces by the name of
home guards in Punjab and Sind Rifle in Sind were created under the police in
order to control the international border. In 1958, the command of these border
police forces was transferred to the officers of the Pakistan Army and emerged
as the present day Rangers.[23]This transfer of the command meant that the
control of this force was effectively shifted to the army. This also excluded
direct control of this force by the central government. Despite the force being
in name under the Ministry of Interior, the officers who are assigned on
secondment to these forces look up to military command for all policy matters.

When the Pakistan Anti-Narcotics
Control Board[24]
was converted into Anti-Narcotics Force,[25]
this organization instead of remaining a police set up was practically transformedinto extension of the army despite its being
under the administrative control of the federal government with posting of
serving forces of armed forces in this organization. When commanded by the army
also means that the force operates like an army formation rather than as a
civilian law enforcing agency. Its emphasis is on operations and not on
investigation for narcotics control, which is fundamentally flawed and leads to
a lack of ability to uproot the source of narcotics proliferation on ground.

In
a similar case, the Airport Security Force i.e. primarily civilian police
function was also constituted and transformed into an extension of the air
force as apparently it had to do with airplanes.

The
effect of this militarization of the policing functions in the country
ultimately has led to the deployment of militarized organization on regular
police duties. For instance, a sizeable strength of 15000 Rangers have been
deployed in Karachi. More are now being deployed in the rest of the country for
extended periods.The use of Rangers
commanded by a general officer of the army as a parallel autonomous police
force has given rise to serious distortion in the overall criminal justice
system. Although in name under the provincial government, it is answerable to
the army command. Despite being on ground since 1994, its lack of formal
training and its army orientation has prevented its merger into the regular
criminal justice system structures. This has resulted in a conflict situation
with the police on ground and has compromised the growth and efficacy of the
police as well as impeded effective law enforcement resulting in heavy cost to
the society at large. Indeed, the common man continues to suffer for the folly
of political decisions.

In
addition to its formal takeover of the entire organization, the governments
(civilian as well the military) also inducted army officers at mid-command
levels. Most of these officers had put in long years of service in the army and
were already conditioned to a regimental culture of an army. Brief training
could not alter their set attitudes and their orientation. Barring a few
exceptions, most of them followed and applied the army standards in running a
civilian police organization. Since they could not change themselves, they
ended up militarizing the police under their command with far reaching impact
on how the police functions today.

One
can observe the footprint of army style specialized units in the police who are
totally out of tune with the ground realities of policing wherein one is
dealing with the citizens of one’s own country and one is expected to
demonstrate flexibility. Rigidity in response and tendency to carry out the
orders of the superiors without taking into consideration the ground realities
have sometimes resulted in avoidable tragic incidents.

Flawed Criminal Laws:

The Criminal Justice System in Pakistan
revolves around three major laws, namely,Pakistan Penal Code (PPC), Criminal Procedure Code (CrPc) and the
Evidence Act. These laws were enacted in the 19th century by the
British Government. The penal law defined the offences and prescribed
punishments in addition to addressing other aspects of criminal acts. CrPc code
laid down details of the procedures for investigation, arrests, search and
placing the final report of crime before the court. It also laid down the
procedures of the bails, remands and trial. The Evidence Act lays down the
parameters for admissible evidence. These laws have provided the criminal
justice system with sound points of reference, but the laws are essentially
alien to the Indian sub-continent where the backbone of the criminal justice
system was the village structure.Some
of the glaring deficiencies of the original laws that have made law enforcement
a nightmare can be identified in the procedure and evidence laws. In the CrPc,
the offences have been divided into cognizable and non-cognizable offences.

This
bars the police from taking any action against the offenders, in non-cognizable
offences and the burden of securing the punishment of the offender is shifted
to the complainant who is required to file a complaint before the court and
produce evidence. Common man does not understand this illogical classification
of criminal acts and results in resentment against the police and the system
and a general discontent among the people. In the evidence law, contrary to the
internationally accepted practice, evidence of confession or statement before a
police officer is not admissible during trial. This inherent flaw has generated
the so maligned thana culture as the
investigator is practically forced to tweak the application of law and resort
to collection of false evidence. This lack of trust in the system by the common
man is apparent by his behavior during the hearing of a case in the court of
law or a jirga or panchayat. While giving false evidence in a court of law is
the accepted norm, the same behavior before a jirga or panchayat is
disgraceful, and the same witness in the two settings will tell a lie or speak
the truth accordingly.

The law has now been in practice for more
than 150 years. Successive governments in Pakistan did not make any efforts to
change the system significantly. As a matter of fact, this issue just does not
find any specific reference in any manifesto of the leading political parties.
Various governments as a matter of administrative convenience or part of some
political reasons made amendments without any proper process. Mostly, these
amendments were drafted by the lawyers and the bureaucrats sitting in the
offices who had little experience of ground realities. Additionally, to meet
any emergency or situation, parallel legislation was established. These
amendments and parallel legislations instead of bringing any positive change
further distorted an already flawed legal system. Scared of the political
slogans of human rights and sometimes Islam, the distortions were adopted by
the parliament. For example, rather thoughtlessly in section 173 of the
Criminal Procedure Courts,[26]
an amendment was inserted regarding the submission of a final investigation
report in a cognizable case wherein the officer-in-charge of the police station
is now required to submit an interim report to the court if the investigation
is not completed within fourteen days. This has led to hasty investigation and
half-baked interim report before the court that may later be found incorrect
and revised thereby casting doubt on the case with benefit accruing to the
accused. Similarly amendments in section 22 of the Criminal Procedure Code have
opened the door for registration of parallel criminal cases for the same
incident. In the Anti-Terrorism Act 'terrorism,' has been defined in such a
loose manner that this law can be applied to any offence chosen by the police
at the operational level. It is also being freely used against political
opponents in most of the high profile cases that have attracted the attention
of the media. We have the singular dubious distinction of applying this law to
our members of law enforcement agencies, ministers, civil servants, Prime
Minister and the President.

This
parallel legislation was the outcome of political consideration and was enacted
just to appease a pressure group or settle an existing situation. This has
created serious administrative, operational and management problems, giving
rise to corruption and bad governance. The senior officers lose control over
their lower functionaries, and the common man suffers because of this
confusion.

The plethora of laws have generated
corruption and practically brought the criminal justice system to a grinding
halt thereby contributing to the weakening of the state.

A diminished state on the precipice

The emerging picture incorporates
colossal challenges of security, a compromised court system and a fractured
structure of police, prosecution, prison and probation/rehabilitation
department, and add to this zones of lawless areas, we have a perfect recipe
for disaster for any country. As a result the state is increasingly finding it
difficult to deal with this unwieldy challenge. Knee jerk and confused
responses are doing more harm than good.

Despite
the repeated attempts at ingresses by the political governments, they have not
been able to pierce the strong amour of the institutional arrangement of the
armed forces. Pakistan army has not only protected its own institution but has
also taken the lead in challenging any threat to the country. This factor alone
has averted any civil war in very difficult circumstances and chaos. They have
worked as glue keeping the state together. The armed forces of this country
have a major role in pulling the country back from the precipice in all crises.
But it must be recognized that it is not a question of survival of the country;
the people of Pakistan deserve a better deal. They need a peaceful, democratic
and prosperous country. A country with hardworking and talented people and
abundant natural resources should be in the front row of the comity of nations
instead of being relegated to the ranks of retrogressive nations, forever a
backward, poor and dangerous nuclear capable country.

The question arises as to why a
country that rose from the ashes after the tragedy of losing its Eastern wing
has failed to learn the lesson from its history and why the political leaders
tend to repeat the history of bad governance and wait to relive the same tragedy
till someone rescues the country. Good governance is alien to them. The leading
political parties have been converted into dynasties stunting the growth of a
vibrant and progressive society.

The progress and development of a
country cannot be achieved with high sounding visions and lofty slogans; it
fundamentally is tied to the mundane day to day hard work by a team of
dedicated leaders who have the intellect wherewithal and the commitment to
deliver. It means taking some basic small steps that must be sustained. As
stated in the opening paragraph of this chapter, the security of a person is
the most important factor to justify the very existence of a country. We are
fortunate to have an army that has the strength and commitment to repel any external
aggression. It is the internal security that is the weak spot and need the
immediate attention of the government; otherwise the existing situation has the
potential of imploding with little hope of rescue by the armed forces, which
are already engaged in the most difficult battle with insurgents. Therefore,
there is a need to take steps to address the basics, and the rest will follow.

The government must take steps to
improve the structures mentioned in the preceding discussion, and the laws that
have been the bane of all genuine efforts to improve the system. The laws
instead of protecting and serving the people for whom these were enacted have
become a tool for suppressing and harassing them. The following
recommendations, if considered in the spirit that these have been made, can
make Pakistan a better country with improved security that will gradually have
an impact on the development and a better life for the common man.

Way
forward

The Government realizes the need for capacity
building of the criminal justice system and has rightly included this important
requirement in its National Internal Security Policy (NISP) that states as
under.

Para 69 (35) In the
absence of well functioning system comprising of police , prosecution services,
prisons and probation departments and the courts, it will be naive to expect
that mere modernizing the police, LEAand he Military intelligence agencies will neutralize the internal
threats. People of Pakistan also need better security services and justice in their
everyday life. It is critical that a holistic approach is adopted to improve
the service delivery. Resources will be dedicated for the purpose and
respective departments will be able to improve their performance and
capabilities." Solution is not stating the obvious we still have to
allocate funds for this purpose that seems to be in abundance when it comes to
high profile fancy mega projects. In view of the existentialist threat we need
to declare an emergency to deal with this aspect and provide the resources at
all cost to improve the system.[27]

Administrative restructuring

All
tribal areas and semi administered ‘B’ in Baluchistan areas must be merged with
the settled areas and uniform basic criminal justice system should be
introduced with required variations in different laws to meet the particular
management and historical requirements of a specific area. These areas must be
mainstreamed without any delay. Present four provinces comprising the
federation have become too big to be effectively and efficiently administered
as single administrative units due to their enormous size. It has caused
deprivation of certain regions is divisive and giving rise to serious political
challenges. If formation of a new province is politically an anathema,
autonomous administrative units should be created.

There
is also an urgent need to deal with the areas of Azad Jammu & Kashmir and
Gilgit-Baltistan where the political status of these areas is in limbo now for
more than six decades. The government of Pakistan exercises the de facto powers
of governing in these areas. Decisions on their future are being taken by the
state structure where they have no representation. Despite the issue of the
Kashmir dispute the least that can be done is to make them part of Pakistan
provisionally with representation in the Parliament. The existing ambiguous status
provides ideal ground for hostile elements to exploit the situation and need to
be addressed now. Tomorrow may be too late.

Stabilizing the various segments of
the law enforcement structures

The police and the prison department are key
to maintenance of internal security in a state. It is they who have to take the
brunt and carry out the lawful orders of the government, provide security and
execute the judgments of the court. Remove this thin blue line between order
and chaos, and you have the collapse of the state. Stability can only stem from a stable institution. The political governments are
tempted to use the police and the prisons to settle their political scores and
tend to control and interfere in their functioning thus compromising their capability
to work as professional and impartial departments.All previous efforts and legislation to
insulate the police from political interference has been frustrated by the
party that comes to power, and the opposition has never bothered to take up
this issue. The Prison department was never considered for any reform because
the police held the real raw power exercised in a vast sphere. In fact, it was
considered to be a tool to intimidate, harass and force rival political
factions into submission. As mentioned earlier, the only stable institutions in
the country are the armed forces. Police top management should, therefore, be
appointed through an institutional arrangement of consultation with this stable
organ of the state. One of the three senior most Inspector Generals of Police
should be posted for a fixed tenure of three years as Secretary Ministry of
Interior. He should be the sole authority for management of the Police Service
of Pakistan directly responsible to the Prime Minister. Acting upon recommendation
of the secretary Interior, the Prime Minster should appoint the heads of all
police forces, FIA, ANF, Frontier Constabulary and Intelligence Bureau should
be drawn from amongst the panel members of three officers of Police Service of
Pakistan of the rank of IGP for a fixed tenure of three years. Premature
removal of any of these officers should only be possible after the officer
concerned has been heard by the committee of three secretaries including the
secretary Interior and headed by the Prime Minister.

In
the provinces, police should function under the provincial government, but the
internal administration of the police and law enforcement functions should be
the exclusive domain of the head of the police/department with coordination by
the Secretary Interior in matters involving more than one province. The heads
of all other departments should be answerable to the Secretary Interior except
the head of the IB who should report to the Prime Minister directly. A legal
framework should ensure that all the police departments are exclusively manned
by the members of Police Service of Pakistan with prescribed training and field
experience. This alone can insulate the police from political influence and
interference and bring stability to the criminal justice structure.

Similarly,
the prison and probation department could be steadied by their linkage with the
Ministry of Interior. These departments need to be up-graded and requisite
resources provided to them. For the prisons the collapsing infrastructure and
high security jails are vital to keep the terrorists and dangerous criminals
confined. Frequent jail breaks are not acceptable pose a direct challenge to
the writ of the state.

The
infrastructure of court complexes must be up-graded and located at convenient
places where the litigants can approach them. A specialized administrative
cadre should provide the necessary administrative support to the courts.
Adequate financial resources must be allocated in the annual budget to the
judiciary including the special funds for protection of judges and witnesses
concerning cases of terrorism. Number of judges should be increased based on
the workload to ensure timely disposal of the cases.

These
are drastic out-of-the-box solutions but then there are no other viable options
on the table.

If these issues are not addressed
timely, the battles won by the armed forces against external and internal
enemies may be lost ultimately by the political governments due to weak, under
resourced and compromised criminal justice structure. Swat is a classic example
of the ineptitude of the civil structure wherein the army after subduing the
militants has been left holding the baby. Two different political governments
have yet to organize the resources to relieve the army from policing duties.
This also depletes the capacity of the army and exposes the army to criticism
and is likely to drag it in the political arena there by weakening it as an
organized, cohesive and effective institution.

Unless all segments of the criminal justice
system are stabilized and insulated, the battle against terrorism and organized
crime can never be won and the country will continue to suffer with slow
economic growth, resultant poverty and dysfunctional state, at the precipice of
disaster with the label of a failing state.

Homeland security:

Extraordinary
challenges need extraordinary steps. USA when faced with the threat from Al
Qaida and militancy decided to set up specialized Department of Homeland
Security (DHS) to deal with the specific challenge, which was then fully
resourced and empowered to counter this threat. It was conceived, organized and
put in place in a short span of time. Its mission was clear and focused and
stated, “Our duties are wide-ranging, but our goal is clear: a safer, more
secure America, which is resilient against terrorism and other potential
threats.”[28]
Keeping in view specific security requirements of USA the department “(DHS) was
created through the integration of all or part of 22 different Federal departments
and agencies into a unified, integrated Department, and how DHS has become a
more effective and integrated Department, creating a strengthened homeland
security enterprise and a more secure America that is better equipped to
confront the range of threats we face.”[29]
Similar actions were taken by Egypt, Saudi Arabia, Indonesia and many other
countries to deal with the terrorism and militancy.

Pakistan is in the eye of the storm, but it
has yet to make even the National Counter Terrorism Authority (NACTA)
functional.[30]
This was meant to be the clearing house of intelligence from various
intelligence agencies that are presently working in isolation from one another,
frequently leading to the loss of vital actionable information. Valuable time
was lost in squabbling over exercising jurisdiction over NACTA. The Minister of
Interior wanted to control the organization against the professional advice of
placing it under the Prime Minster.We
must learn from the experience of the other countries. The National Internal
Security Policy paper mentions such wish but there is no action on ground. This
policy paper needs to be reviewed with the inputs by the departments that are
dealing with terrorism in an ongoing battle in the field. Like the DHS the
departments that have huge data base should be placed under NACTA that must
work under direct control of the PM office. It should coordinate the operations
in the field, de-radicalization of infected individuals, denial of finances to
the terrorist organizations, threat assessment, project future trends and
conveying the real time actionable intelligence reports to the field officers.

The
authority must be headed by a professional police or intelligence officer who
has had the field experience of dealing with the terrorist cases, is educated
and qualified to be able to advise the government on all matters that has a
bearing on the terrorism threats. Allocation of resources to deal with the
terrorism should be made only on his advice so that there are no duplications.

Revisiting the laws to remove the flaws

There is a dire need to set up a committee of
experts including all players of the criminal justice system who implement the
laws on ground, hear their concerns, identify conflicting provisions of laws,
simplify the procedures and immediately take in hand the rationalizing of all
these laws. All laws should be re-enacted with the amendments that need to be
retained and included in the text. Special laws be revisited and their
anomalies removed. All old and redundant laws should be repealed. Unless we
bring clarity in the laws, the people will continue to suffer at the hands of
unscrupulous legal practitioners

Special
laws for anti-terrorism should be examined in more to detail to ensure that
these are applied only for acts of terrorism alone and there should be no
possibility for misusing for political or any other purpose. The misuse of law
by the governments and even the courts[31]
has defeated the very purpose of these enactments. For a specified time frame
special courts with wide powers are set up that must only take up the cases of
terrorist acts for speedy trials.

Reviving traditional system for
alternate adjudication under prescribed heads

In order to reduce the burden on the
criminal justice system structure, the revival of the old local justice system
of Panchayat and jirgas that are embedded in the social fabrics of the people need
to be reassessed and introduced to deal with day-to-day minor issues. This
experiment has been quite helpful in dispute resolutions of minor nature, which
if unattended tend to end in more serious crimes. Panchayat and jirgas with
the involvement of the local police and district administration can help in
reconciliation and resolution of disputes. This experiment has already produced
good results in KPK and for dispute resolutions in ICT.

Improvement in governance

Implementation
of all the recommendations that are given above will be futile unless the governance
is improved and that is possible if you have a workable system. Parliamentary
form of government in the British tradition has failed to deliver. It has
generated favoritism; weak governments open to black mails by the small
political parties and independent members. It has created a group of
politicians with vested interest who want to perpetuate this flawed and corrupt
system. It makes the party heads all powerful who have promoted their own
family interests and are tempted to create political dynasties keeping the
others outside the inner circle that control the resources of the state and
misuse it at will. Even much trumpeted eighteenth amendment has only made the
matters worse and the common man suffers. It is only the armed forces and the
media that has checked this trend of using the state as personal estate.
Without these checks the country will collapse and fall apart. It is therefore
vital that the power should be re-engineered to transform and ensure a strong
and stable government and governance structure and obviate all possibilities of
creating dynastic politics. Unless the fundamental issue of governance is
addressed, Pakistan will be condemned to relive its past till last vestige of a
functional state and is likely to wither away. The country does not have the
luxury of time and action must be initiated now as tomorrow may be too
late.

[1]
Ref:Report by Umar Cheema on statement
of General Vijay Singh on sponsoring militancy in Balochistan. The NewsDaily on National Page October 21, 2013

[30]
Reference required please – No reference required it is a known fact.

[31]
High profile cases of normal crimes order to be tried under the anti-terrorism
laws.Recent cases of Model Town –
Pakistan Awami Tehreekcase and cases
against former President General ® Parvaz Musharraf and Imran Khan

2 comments:

A very elaborate and excellent exposition of the current situation and recommendations for change. It may be worthwhile to consider making elaborate separate proposals for making all the agencies involved in internal security and criminal justice more effective in dealing with the alarming situation prevailing.The proposal for the federal government to perform its role effectively on dealing with terrorism is noteworthy because presently the federal government has passed on this function either to the military or the provincial government. The federal government must assume responsibility for dealing with terrorism and extremism.